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Here are my thoughts on the new Formal Opinion 479 from the ABA Standing Committee on Ethics and Professional Responsibility offering guidance about what constitutes “generally known” information under ABA Model Rule 1.9, as published in the March 2018 issue of the ABA Journal.

“I agree that this definition makes sense, though I don’t think it necessarily resolves what is generally known in every instance,” says Renee N. Knake, who teaches legal ethics at the University of Houston Law Center and recently co-wrote Professional Responsibility: A Contemporary Approach. “Inevitably gray areas will arise, but I do think that the opinion offers helpful guidance as to what may constitute ‘generally known.’ ”

She says questions remain as to what “minimum threshold of publications” are necessary to establish that the information is generally known.

“What about other sources, such as a public survey or opinion poll?” she says. Regarding wide recognition in the former client’s industry or profession, Knake asks whether it is “possible to rely as well on expert opinions.”

Further, “information that is publicly available is not necessarily generally known,” the opinion reads. “Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).”

“The opinion is striving to achieve a balance here,” Knake says. “Defining ‘generally known’ to include any public record would address the gray area problem, but it doesn’t sufficiently protect the sort of information contemplated under the umbrella of confidentiality afforded by Model Rule 1.9.”

Model Rule 1.9(c)(2) prohibits a lawyer from “revealing information about a former client,” Knake says. “The difference between ‘reveal’ versus ‘use’ is significant, and the lawyer may only use a public record that has otherwise been revealed by another source and spread widely.”